Lloyd's Maritime and Commercial Law Quarterly
FOREIGN MARITIME LIENS IN ENGLISH COURTS—PRINCIPLE AND POLICY
Professor D. C. Jackson
The University of Southampton.
In The Halcyon Isle1 the Judicial Committee of the Privy Council was presented with the direct issue of whether in Singapore law (equated for this purpose with English law) a claim having “maritime lien” status under foreign law should be recorded that status before a Singapore court. If a forum limits its recognition to its own maritime liens, the classical description of such a lien that it “travel with the thing into whosoever possession it may come” is incorrect. It will attach and become detached according to the views of particular jurisdictions. On the other hand, if a forum does recognise foreign liens, to that extent it hands over control of its policy to another legal system, and that system is able to extend its policy beyond its sphere of direct control.
1. THE DECISION AND THE REASONING
In The Halcyon Isle the Judicial Committee decided by a slender majority of 3–2 that
“… the English authorities on close examination support the principle that, in the application of English rules of conflict of laws, maritime claims are classified as giving rise to maritime liens which are enforceable in actions in rem in English courts where and only where the events on which the claim is founded would have given rise to a maritime lien in English law, if those events had occurred within the territorial jurisdiction of the English court”.2
The majority took the point that to classify a claim as a maritime lien meant not only conferring on it the highest priority as against other creditors but enabling it to be brought against a purchaser of the ship to which it is attached. It declared that the question of the persons entitled to bring a claim and the matter of priorities between claims are questions of jurisdiction and are to be decided by English law as the lex fori. At the same time, in examining the authorities, the Arrest of Ships Convention of 1956 and the Conventions relating to Maritime Liens and Mortgages of 1926 and 1967 the majority stressed that a maritime lien is “procedural and remedial only” and therefore is a matter for the lex fori.
The minority attacked the majority view that the maritime lien is “no more than a procedural remedy” saying that this view leads to a system of dominating domestic law. And in such a “climate … the concepts and principles of the law of the sea wilt and die”.3 It took the view that a maritime lien is a “right of property”.
1 [1980] 3 All E.R. 197 (under the name of Bankers Trust International Ltd. v. Todd Shipyards Corpn.)
2 At p. 206.
3 At p. 206.
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